In early 2015, the FCC’s “Open Internet” order reclassified providers of broadband Internet access service, including WISPs, as Title II “telecommunications service” providers for certain purposes. While the wisdom of this decision was hotly debated in the WISP industry, one potential benefit of this reclassification included the right to attach to most utility poles in accordance with the FCC’s rules and regulations.
Although the installation of end-user antennas was previously protected by the Federal “over the air reception device” (OTARD) rules, these rules unfortunately do not extend to the relays, hubs and access points deployed by most WISP networks. Initially pushed by the satellite television industry, OTARD rules preempt local zoning laws and community associations from banning wireless end-user devices that provide video programming and broadband data. However, multi-point access devices can be deployed in a similar fashion only if the deployment is not inconsistent with local zoning laws and homeowner association rules. In practice, laws and association covenants vary widely regarding what is and what is not permitted and whether they are enforced.
Under the new Title II laws, however, subject to any legitimate technical feasibility issues or barriers, WISPs should now be able to attach antennas to the tops of utility poles and, if needed, attach support equipment below the conductors, under FCC regulations and at the FCC’s favorable pole attachment rates.
Pole attachment obligations apply to “public utilities” that own or control poles, ducts, and conduits. Poles owned by “investor-owned” utilities, which include most power companies and local exchange carriers, are covered by the Federal pole attachment rules. Poles owned by cooperatives, railroads, or any entity owned by the Federal government or any State or local government, however, are not covered by the pole attachment rules.
Pole attachments for telephone and cable companies typically occur on the side of the pole below the electric lines, an area known as the “communications space.” Most WISPs, however, likely want to attach access points to the top of the pole, above the electrical conductors. The good news here is that the FCC has made it clear that the right to attach under FCC rules and at FCC rates applies not just to the traditional “communications space,” but also to the tops of poles. Note that the rules for pole top attachment are somewhat different, and the costs may be higher. The regulations also provide a right of attachment only to local “distribution” poles, not to very high voltage “transmission” lines like those that supply electrical substations.
Based on the current FCC rules, WISPs have a right to:
- Reasonable, cost-based rates for attachments, including antennas. Rates range from well under $10 up to $30, per pole, per year. Rates for filing an application can vary widely ($55 per pole in one case; $5,000 city-wide in another case) and the rates for the necessary “make ready” work are typically based on “cost plus” hourly rates.
- Apportionment of the utility’s costs among all communications attachments on the pole.
- Non-discriminatory access to poles on the same basis as other communications attachers.
- A right to attach on pole tops when it is technically feasible.
- A right to attach in the “communications space” when there is space available.
- A right to have existing communications facilities on a pole re-arranged at a reasonable cost to make room for a new attacher, including the placement of a new pole.
- A reasonable, cost-based rate for “make ready” work on the pole.
- Time limitations that ensure reasonably prompt responses to and implementation of attachment requests and any necessary “make ready” work by the utility.
The applicability of the pole attachment rules to wireless and broadband internet access service providers is relatively new. Although pole owners that are unfamiliar with the new laws may initially resist pole top attachments by attempting to impose exorbitant charges or other undue conditions, it’s important for internet service providers to know their rights. If a pole owner refuses to offer a contract for attachment that complies with the FCC’s rules, the WISP can file a complaint with the FCC, giving the WISP some leverage in contract negotiations with the utility. Even the risk that a WISP will file a complaint gives it some leverage in contract negotiations with the utility.
As with any legal regulations, the rules can be somewhat tricky. Contact a qualified FCC attorney for additional legal advice regarding Title II requirements. Though not without hurdles, the right and ability to use existing neighborhood utility poles to expand your MicroPoP network is certainly a benefit of Title II that should be added to the toolbox of any WISP.